United States District Court, D. Maine
DETENTION ORDER ON MOTION TO REVOKE BAIL
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
Court rejects a defendant's contentions that the Rules of
Evidence and the Confrontation Clause must apply to a bail
revocation hearing for a defendant who has pleaded guilty and
is awaiting a sentencing hearing, concludes that his
arguments are without merit, and orders the defendant
detained pending the imposition of sentence.
January 9, 2018, Donald Cain pleaded guilty to one count of
stalking, a violation of 18 U.S.C. § 2261A(2)(B).
Min. Entry (ECF No. 153) (Rule 11 Hearing);
Indictment (ECF No. 56). The prosecution version of
the offense, which Mr. Cain admitted was true at his Rule 11
hearing, reflects that from November 27, 2014 until December
27, 2015, Mr. Cain engaged in a campaign of harassment
against his then wife, L.H. Prosecution Version (ECF
No. 145). Mr. Cain's harassment included threats to kill
his ex-wife's mother, hundreds of telephone calls and
text messages, threats to kill his ex-wife and her new
boyfriend, threats to send videotapes of L.H. having
consensual sex to members of L.H.'s family, threats to
rape L.H.'s daughter, all in vile and violent language.
Id. at 1-5. After pleading guilty, the Court
released Mr. Cain pursuant to 18 U.S.C. § 3143, in part
because Mr. Cain was gainfully employed out of state and
wished to continue employment. The Court imposed the same
bail conditions previously imposed, which included no-alcohol
and no-new-crimes restrictions. Rule 11 Hearing;
Am. Order Setting Conditions of Release at 1-2 (ECF
April 20, 2018, at 2122 hours, a Trooper with the Department
of Public Safety in Nevada observed a black Chevy pickup
truck overtake his cruiser on I-95 at a high rate of speed.
NHP Police Report at 3. The Trooper calculated the
vehicle's speed at eighty-nine miles per hour in a
sixty-five-mile-per-hour zone. Id. The driver, later
identified as the Defendant, failed to maintain his lane of
travel, crossing over both the right and left lane lines and
into adjacent lanes. Id. Upon stopping the vehicle,
Mr. Cain produced a Maine license and denied drinking alcohol
that evening. Id. The Trooper noticed that Mr. Cain
had slow slurred speech and the odor of alcohol emanated from
his vehicle. Id.
Trooper put Mr. Cain through some field sobriety tests.
Id. at 4. Mr. Cain failed a number of them.
Id. After Mr. Cain refused a breath test, the
Trooper transported him to the Las Vegas detention center and
obtained a warrant to take a blood test. Id. at 5.
The blood samples for testing were taken at 2354 and 0052
hours on April 19 and April 20, 2018 respectively.
Id. Mr. Cain was cited for driving twenty-one miles
per hour over the speed limit, driving under the influence of
alcohol, failure to drive within marked lanes, expired
registration, and lack of proof of insurance, all violations
of Nevada state law. Id. at 2, 12.
December 23, 2015, a federal criminal complaint was issued
against Donald L. Cain, charging him with two counts of
harassing telephone calls in interstate communications,
violations of 47 U.S.C. § 223(a)(1)(E). Compl.
(ECF NO. 3). On August 9, 2016, a grand jury indicted Mr.
Cain for one count of stalking, a violation of 18 U.S.C.
§ 2261A(2)(B), and two counts of transmitting
threatening communications in interstate commerce, violations
of 18 U.S.C. § 875(c). Indictment. Mr. Cain was
arrested in the District of South Carolina on January 21,
2016, and on February 17, 2016, the Magistrate Judge released
Mr. Cain on bail with conditions of release, including that
he not commit new crimes and that he not use any alcohol.
Order Setting Conditions of Release at 1-2 (ECF No.
29). The Pretrial Services Report dated February 17, 2016
revealed a 2013 Operating under the Influence conviction.
Pretrial Servs. Report at 3 (ECF No. 27).
January 9, 2018, Mr. Cain pleaded guilty to count one, the
stalking count. Rule 11 Hearing. The Court released
Mr. Cain on bail under the same conditions previously
imposed, including the no-alcohol and no-new-crimes
conditions. Id.; Am. Order Setting Conditions of
Release at 1-2. On May 8, 2018, the Court held a
presentence conference, Min. Entry (ECF No. 165),
and set the sentencing hearing for June 28, 2018. Notice
of Hr'g (ECF No. 166).
on April 26, 2018, the Government filed an ex parte motion
for the issuance of an arrest warrant. Ex Parte Mot. for
Issuance of Arrest Warrant, for Revocation of Order Setting
Conditions of Release, and for an Order Directing the
Def.'s Detention (ECF No. 162) (Gov't's
Mot. to Revoke). The basis of the motion was the
allegation that Mr. Cain had violated the no-new-crimes and
no-alcohol conditions of release by drinking alcohol and
driving under the influence of alcohol in Las Vegas, Nevada.
Id. at 2. On April 26, 2018, the Magistrate Judge
granted the motion for arrest warrant. Order (ECF
No. 163). Also on April 26, 2018, the Government moved to
revoke Mr. Cain's bail for violating the conditions of
release. Gov't's Mot. to Revoke at 1-2. On
May 10, 2018, the Court set the revocation hearing for May
25, 2018. Notice of Hr'g (ECF No. 167).
22, 2018, three days before the scheduled hearing, Mr. Cain
moved to continue the revocation hearing on two grounds: (1)
that he had not received the blood alcohol test results, and
(2) that he was entitled to present a “complete
defense” at the bail revocation hearing. Def.'s
Mot. to Continue Hr'g on Mot. to Revoke Bail and
Detention Hr'g (ECF No. 170). The Court held a
telephone conference with counsel the next day. Notice of
Hr'g (ECF No. 173). On May 23, 2018, the Government
filed a memorandum objecting to the continuance.
Gov't's Obj. to Def.'s Mot. to Continue
Hr'g on Mot. to Revoke Bail and Detention Hr'g
(ECF No. 172). In its objection, the Government represented
that the laboratory report, reflecting that Mr. Cain's
blood test had come back with a concentration of ethanol of
0.150%, had been provided to defense counsel during the
evening of May 22, 2018. Id. at 2. The Government
also said that the Nevada Highway Patrol was providing the
Government with a disk containing the dashcam/cruiser video.
telephone conference, defense counsel expanded upon his claim
of a right to a “complete defense” at the
revocation hearing. He maintained that a bail revocation
hearing requires full due process, that the Rules of Evidence
must be applied, and that a defendant has a right to confront
witnesses against him. Upon hearing this position, the Court
ordered counsel to file memoranda by 5:00 p.m. the next day.
Min. Entry (ECF No. 173). During the telephone
conference, the Court referred to the case of United
States v. de Castro-Font, 778 F.Supp.2d 201 (D.P.R.
2011) in which the district court concluded that the
Confrontation Clause did not apply to bail revocation
hearings. Both counsel complied. Def.'s Mem. in
Support of Confrontation and Excluding Hearsay Evid. at the
Bail Revocation Hr'g (ECF No. 174) (Def.'s
Mem.); Gov't's Mem. Regarding the
Admissibility of Reliable Hearsay (ECF No. 175)
The May 25, 2018 Bail Hearing
Mr. Cain's adamant and vociferous objections, the Court
allowed the Government to introduce both the police report
and the blood alcohol test results from the April 19, 2018
traffic stop in Las Vegas, Nevada. The Court concluded that
the police report and the blood alcohol test results were
reliable evidence and therefore admissible for purposes of
the bail revocation hearing. Other than District of Maine
Probation Officer Laflin, who served as a foundational
witness for the Nevada exhibits, no witnesses testified.
Based on the admitted exhibits, the Court concluded by clear
and convincing evidence that Mr. Cain had violated a
condition of bail in that he had consumed alcohol on April
19, 2018. See 18 U.S.C. § 3148(b)(1)(B).
Court based its conclusion on: (1) that Mr. Cain had been
speeding approximately twenty-one miles per hour over the
speed limit, (2) that he had failed to maintain his travel
lane three times as the Trooper followed him; (3) that the
Trooper noticed the odor of alcohol coming from Mr.
Cain's vehicle; (4) that Mr. Cain's speech was slow
and slurred; (5) that Mr. Cain failed the walk-and-turn test;
(6) that Mr. Cain stumbled as he walked; (7) that Mr. Cain
exhibited difficulty standing; (8) that Mr. Cain was unable
to perform the one-leg stand test; (9) that Mr. Cain's
blood alcohol result at 2354 hours on April 19, 2018 was
0.150g/100ml; and (10) that Mr. Cain's blood alcohol
result at 0052 hours on April 20, 2018 was 0.139g/100ml.
Court did not conclude that Mr. Cain had committed a new
criminal offense in violation of the bail condition that he
not do so because the elements of each criminal violation and
the specifics of the laws in state of Nevada had not been
demonstrated. Furthermore, the absence of the dashcam video
at the bail hearing was a gap in proof that the Court
concluded did not allow for a finding of new criminal
Court remanded Mr. Cain into custody pending further order
because it also determined that there was no condition or
combination of conditions that would assure that Mr. Cain did
not represent a danger to the safety of any other person or
the community and that he was not likely to abide by any
condition or combination of conditions of release. 18 U.S.C.
§ 3148(b)(2)(A), (B). The Court took into account the
fact that the victim of Mr. Cain's offense resides in the
state of Maine and, other than asking to be released, the
absence of any concrete proposal by Mr. Cain to assuage the
Court's concern about the victim's continued safety.